Lord Howell of Guildford: My Lords, did not the UN Commission on Human Rights, when it looked at this appallingly difficult problem, recognise that there were atrocities on both sides? Would not the balanced view be that while the Chechen people want greater local autonomy, the Russians see this as a hotbed area of Al'Qaeda activity and Islamic extremism, with some evidence to support that, and that if it broke away altogether it would trigger the unravelling of the entire Russian Federation? So is not the right approach to applaud what the noble Lord, Lord Judd, expresses in his concern for human rights but also to recognise the Russian dilemmas and encourage the round table talks which are proposed to be held in either Moscow or Grozny and support the aim of all sides, including the Russians, to try to resolve this eternally difficult problem in a less violent way?

Baroness Crawley: My Lords, we strongly support the proposed round table talks. There is evidence to link elements of the militants in Chechnya with parts of Al'Qaeda. The thrust of the noble Lord's contribution is absolutely right. We recognise Russia's genuine security concerns in the region. Terrible terrorist attacks have taken place across Russia and have claimed many lives.

Baroness Crawley: My Lords, we are continually committed to co-operating with the Russians to generate concrete solutions to the human rights and socio-economic issues facing Chechnya and the wider region.

Lord Goldsmith: My Lords, I absolutely agree with my noble friend that raising awareness, particularly among the practising communities, and educating them about the dangers and unacceptability of this brutal practice is essential. I had not been aware of the details that the noble Baroness has just mentioned until she kindly provided them in advance.
	The Government are doing a lot to raise awareness. They are promoting work through FORWARD, which is the leading body actively working with communities to bring an end to the practice; the ACCM, the Agency for Culture and Change Management; and BWHAFS, Black Women's Health and Family Support, which is giving significant financial support. I agree with my noble friend that it is important that that work is continued. To that end, I have invited those groups to meet me along with the FGM group of the Women's National Commission to discuss the issues further.

Lord Avebury: My Lords, why does the noble Lord need more time to consider the recommendations made in this report when it simply reinforces what has already been said by the Chief Inspector of Prisons, the United Nations Committee on the Rights of the Child, the United Nations Human Rights Committee and the UNHCR? All have criticised our policy of detaining 2,000 children a year, half of them for longer than the 28-day period which the noble Lord himself has said should be the upper limit. Does he not agree that, in the light of all the reports, there should be a root and branch review of the policy of detaining children with a view to complying with the Government's own enunciated policy of keeping as few as possible in custody for the minimum length of time?

Lord Bassam of Brighton: My Lords, the Government received the report on Monday. I ought to pay a compliment to Save the Children because this report is the fruit of a very good dialogue between Save the Children and the Home Office. We now look forward to continuing discussions with the charity so that we can consider its recommendations in a spirit of co-operation. We are at one with the noble Lord in wanting children to be detained only for the shortest possible period. We want also to ensure that such children are well looked after and cared for. It is clear that there are shared objectives here and we very much welcome the report in that light.

Lord Lester of Herne Hill: My Lords, as my noble friend pointed out in his supplementary question, is the noble Lord aware that this issue has been raised not only in the Save the Children report, but also by both the UN Committee on the Rights of the Child and the UN Human Rights Committee under two international human rights treaties? They have found the United Kingdom to be in breach of its international legal obligations. Given that, why on earth are the Government now procrastinating over a proper answer to the question posed by Save the Children in its report? Is it not time to end as soon as possible this abuse, in accordance with our international legal obligations?

Lord Dholakia: My Lords, I want to pursue slightly further the question put by my noble friend Lord Lester. Do the Government subscribe to international standards and guidelines which state that asylum seeking children should not be detained? If that is the case, why is it necessary to put down a reservation on this matter with the UNCRC?

Lord Bassam of Brighton: My Lords, in appropriate circumstances, particularly where families are being removed because their application has failed, it is only decent and proper to ensure that those children are held together with their families before they return to their country of origin. The noble Lord will know also that it is our policy to place unaccompanied asylum seeking children in the care of local authorities, not to hold them in detention centres. That, too, is right and proper.

Lord Bassam of Brighton: My Lords, this clearly is an important issue. It is part of the report and one of the 21 recommendations that we, as a government, need to digest carefully and give further consideration to. I am sure the noble Earl will have heard at the outset of my responses that we desire to have a continued dialogue with Save the Children. We believe that the report is a very important contribution to that debate, which needs to continue. We will of course endeavour to respond in detail to all the recommendations in order that we can come to an agreed and acceptable way of ensuring that such children are well looked after and cared for.

The Earl of Listowel: My Lords, will the Minister take note of the concerns expressed in the report in regard to the voluntary aided return programme? People working both in the Home Office and outside are concerned that the voluntary aided return programme is not being raised more clearly with asylum seekers, both at the initial stage of application and in detention centres. Indeed, it was a recommendation of the Home Affairs Committee of the other House in 2003 that more work should be done in this area. Will the Minister look carefully at this matter?

Lord Cope of Berkeley: My Lords, we have done our best to accommodate the Government's perceived need to complete the Bill quickly but the House is being placed in a very difficult position today, not only in regard to the groupings but altogether. I remind your Lordships that the clauses of the Bill were never discussed at all in Committee in another place—they never reached that stage—because of a very tight timetable. So the clauses of the Bill have never been discussed at all.
	Since then, I think 37 government amendments have been tabled this morning—they are all starred amendments—and they involve knocking out some clauses and inserting whole new ones. At the same time, as we have just heard, we have no groupings to go by. So it is not only difficult for the Front Benches to sort out where we are but also particularly difficult for individual Members who wish to take part in the various debates.
	I am absolutely sure that we should adjourn for at least a quarter of an hour, but I am not sure whether we will be able to resolve matters satisfactorily in that time. I draw your Lordships' attention to the fact that the Constitution Select Committee of this House—an all-party committee, obviously, as all Select Committees are—has this morning reported that the proposals in the Bill are of major constitutional significance and that they and any possible amendments—it is referring to the Government's amendments as well as to those of other people—should be given particularly careful consideration. The Select Committee is quite right, but the House will have a very difficult time doing that.

Lord Roper: My Lords, from these Benches I wish to associate myself with the remarks of the Opposition Chief Whip and to add that, in order for us to do our job properly and to consider the Bill carefully, it is extremely important on this occasion that we get the groupings right and that we separate out the different issues so that we can consider them properly. I believe the delay is in the interests of the whole House and therefore we support it.

Lord Forsyth of Drumlean: My Lords, I appreciate that these are usually matters for the usual channels but, as a humble Back-Bencher—perhaps not so humble—I would like to protest in the strongest possible terms. I have cleared my diary because of the importance of this matter. As far as I can see, there is not even a Minister on the Bench responsible for the Bill. People have had to work all night on these amendments and it really is outrageous if Ministers cannot get their act together when we are faced with the presentation of legislation on this kind of timetable.
	I struggled this morning to understand the government amendments and those tabled by other Members of the House. It is impossible to follow matters because the Government are re-writing the whole Bill by amendments which have not been considered by the other place. If I were a Member of the other place—which I was for a number of years; and I have never seen anything like this—I would feel grossly offended by the Government's treatment of the House of Commons. Given the Government's past treatment of the House of Lords, it is rather ironic that we should be here to save the Government's bacon in pursuing procedures which are unheard of and which are making it impossible for this place to do its job properly.

Lord Waddington: My Lords, following up on the point made by my noble friend, I hope the Government Chief Whip will help the House on this matter. We are about to embark on a most unusual procedure. The House of Commons has at no time discussed, even for a moment, the proposals now being put forward by the Government, and we are to be invited, I understand, to send back to the other place a very different Bill incorporating the radical amendments put forward by the Government.
	We know from reading the papers and Hansard that the way in which the Government have conducted themselves over this matter did not find favour with the House of Commons the other day. We have some responsibility here not to stir up trouble between this House and the other place, and I wonder how the other place will feel we have conducted ourselves if we send back radical amendments with which it has to deal under a ridiculously tight timetable.
	The Government Chief Whip at least owes us this: that we should not embark on any discussion of these amendments today without a clear statement from the Government as to the amount of time that will be made available in the Commons to discuss these amendments, if and when they get there. If the answer is that they will all be discussed under a timetable which restricts debate to one hour, I cannot see that we would be right to deal with these amendments at all.

Lord Ackner: My Lords, may I make this short intervention? There is growing apprehension among the judiciary as to exactly what they are being asked to do. There is great concern that they may be dragged into the political scene by being asked to rubberstamp a procedure quite alien to their function. During all these discussions, I hope that someone has had the good sense to raise this type of question with the senior Law Lord and the Lord Chief Justice. Unless that has been properly covered, we are really in the dark on the position.

Lord Grocott: My Lords, I have listened to the discussion and will now suggest that we should adjourn until twelve o'clock. Given that the first grouping of amendments was agreed a short while ago, that should give us all enough time.
	I am very tempted, though I shall resist the temptation, to respond to a number of former Ministers. Unless my memory has gone completely askew, they were not at all averse to supporting guillotine Motions in the House of Commons over—if my memory serves me correctly—18 years. I routinely remember the arguments used at those times, including those of the noble Lord, Lord Forsyth, who said that he was grossly offended by what had taken place. I can remember being grossly offended on numerous occasions in another place when the positions were reversed.
	I will leave it there. However, I have to say to the noble Earl, Lord Onslow, that he has to be careful about what he says about the people of Scunthorpe. I think that that will travel back to the people of Scunthorpe and, if he is not careful, it might be interpreted as the Conservative view of them.
	I simply repeat that I think that it would be sensible to adjourn until noon.

Lord Carlisle of Bucklow: The Chairman of Committee has just said that if Amendment No. 1 is agreed, and the 16 lines are removed, all those amendments relating to Clause 1 as it stood previously would drop and could not be moved. It would not therefore be possible to debate them in this Committee. I accept that the noble and learned Lord the Lord Chancellor is not attempting to avoid debate on all those matters. However, could it not be agreed at least that the Minister should give notice that at the end of the debate on the amendment she will withdraw it, making it clear that she will bring it back at a later stage having heard the further arguments?

Lord Goodhart: I am sorry to take a different view on this, but I think that the government amendment should go in at this stage. We are in a chaotic position, partly because we are at the same time considering amendments to the Government's new amendments and amendments to the Government's original version. We do not want that to happen again on Report. Although I entirely take the point made by the noble Lord, Lord Carlisle, who has an important amendment to be debated, Amendment No. 10, that issue is raised by others that are not pre-empted and it can be raised again by a different amendment on Report. It is important that we have a coherent government Bill on Report. If the government amendments are withdrawn we will not get that.

Lord Falconer of Thoroton: I am explaining what the government amendments do, in order to put them in their context. I apologise for doing so at some length, but it seems to me that that is what the debate is about.
	I ask noble Lords to return to Amendment No. 80, which deals with derogating control orders. The process involves an application being made by the Secretary of State to the court, which will almost invariably be on an ex parte basis.
	"At the preliminary hearing—
	the ex parte hearing—
	"the court may make a control order against the individual in question if it appears to the court that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity; that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation . . . and that the obligations that there are reasonable grounds for believing should be imposed . . . are or include derogating obligations".
	That means those that, in effect, deprive a subject of his liberty. So there is an ex parte hearing at which the court, if satisfied of those conditions, may make an order. There is a discretion.
	If the court makes the order, then, in effect, it gives directions for a full hearing. What is to be decided at the full hearing is set out in Amendment No. 80, subsection 7:
	"At the full hearing, the court may confirm the control order (with or without modifications) only if it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity; it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a . . . derogation",
	and the obligations are necessary to prevent the risk arising.
	So in relation to a derogating order ex parte application, if satisfied that there is a prima facie case—those words are not in the Bill—the court may make the order. There is then a full hearing and the order is continued only if, having heard both sides of the argument, the court concludes that there is justification and is satisfied, on the balance of probabilities, that the controlled person is an individual who is, or has been, involved in terrorism.

Lord Falconer of Thoroton: Sections 15 and 16 of the Human Rights Act 1998 allow the Secretary of State to lay an order. The derogation takes effect from the point that the order is laid. That order is subject to a resolution of both Houses of Parliament. If either House refuses to back the derogation, then it falls, but it takes effect immediately upon the laying of the order by the Secretary of State.
	Amendment No. 80 sets out the position in relation to derogating orders. In relation to non-derogating orders, I take noble Lords back to Amendment No. 55:
	"(A1) The Secretary of State may make a control order against an individual if he—
	"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
	"(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.
	"(A2) The Secretary of State may make a control order against an individual who is for the time being bound by a control order made by the court only if he does so—
	"(a) after the court has determined that its order should be revoked"
	I do not think that I need to read any more. Subsection (A1) is the critical part. Unlike the derogating control order, the non-derogating control order is made by the Secretary of State.

Viscount Bledisloe: Before the noble and learned Lord sits down, having sorted out the confusions in the mind of the noble Lord, Lord Lester, could he attempt to do the same for me? Under (1B)(b) of his new clause, the court comes into operation only if the Government have made a derogation order and are seeking to impose an obligation which is expressed to be within the scope of that order. On the other hand, the Secretary of State's power, under (1A), applies only to an obligation which is not incompatible with the right to liberty. Therefore, if the Secretary of State makes an order which is found to be incompatible with the right to liberty, then that order is a nullity. If there is a situation in which no derogation order has been made, he cannot go to court; but, if he thinks that the order goes too far and imposes obligations that are incompatible with Article 5, he cannot make an order either. At that stage, nobody can make an order. Is that right?

Lord Thomas of Gresford: The noble and learned Lord the Lord Chancellor has set out his stall to a degree. I will say briefly and in broad terms where we are going in relation to the amendments that we have to set down. We believe there should be a single procedure for these control orders, the principle of which we have accepted for some time as your Lordships know. That single procedure should be that an application is made by the Secretary of State to a court and that a judge should decide the matter on the merits.
	It is not enough that the matter should be placed in the hands of the court, as the noble and learned Lord, Lord Ackner, pointed out today. It is important that the judge has a proper hearing and, in addition to the matter being put before a judge in a court, there should be due process. For example, the defendant or suspect should know the nature of the case against him and the nature of the evidence, and he and his counsel should have the opportunity to reply to that case. If that does not happen, a judge becomes—as the noble and learned Lord, Lord Ackner, put it—simply a rubber stamp of a decision that has been taken by a member of the executive. We hope as a House—I adopt the comments at Second Reading of the noble Lord, Lord Brennan, that this is not just a matter for we on these Benches—that when the Bill goes back at the end of the day, the basic principle will be underlined that it is a court that deprives people of liberty—or restricts it—and that it does so with a judicial hearing where there is due process.
	I hope your Lordships will forgive me, but to illustrate this a little, last Sunday I was sitting in a restaurant on the le de la Cité in Paris, celebrating the greatest victory of the Welsh over the French since the battle of Agincourt. I was reminded of the Terror in the French revolutionary times. Your Lordships may recall that in a period of about nine months in 1793–94, some 20,000 people were taken before a judge. They were not allowed to say anything in their defence; they were declared to be enemies of the state. The judge pronounced that they be executed, and they duly were the following day. The prosecuting authority was called the Committee of Public Safety, and that has a ring about it today when we consider that everything is being done in the name of public safety and public security. It is not just enough to have a judge sitting in a court; he has to be able to make a decision.
	Amendment no. 2, grouped with Amendment no. 4, is to bring together the different types of control orders—we shall be saying in due course that we do not accept the principle of a derogating control order anyway—with a single procedure that enables the court to make the decision, and not the Secretary of State. Of course we shall later address your Lordships on due process and on the matters that are required to be amended in the schedule to the Bill. I hope that all of us—I include the whole Committee apart from the Front Benches, who are sitting in their trenches with no man's land in between—will see that due process is not contained in the schedule. I beg to move.

Lord Carlile of Berriew: I declare my interest as the current independent reviewer of the detention provisions under Part 4 of the 2001 Act. From that viewpoint, I thought it wrong to intervene at Second Reading of the Bill. However, it may be of assistance to the Committee if, without expressing any opinion on the merits of the amendments, I make a few comments in the form of questions.
	My starting point is that there is undoubtedly a serious and immediate threat of widespread harm to the public arising from the actions of Al'Qaeda-connected terrorists. Perhaps I could add a sentence to that. Al'Qaeda-connected terrorists are different from anything we have ever experienced, and every step they take is more different. They do not have a command structure. They are a disparate co-fraternity rather than any kind of formal confederation, which makes the threat all the greater.
	Something has to be done. Some effective measure has to be found to replace the detention provisions, following the decision of the Law Lords on 16 December. My role as independent reviewer is not to review the merits of the provisions, but their working. The comments I will now make relate to that working. I have five points to make, if the Committee will bear with me.
	First, I invite the noble and learned Lord, the Lord Chancellor, to comment on the standard of proof required before any form of control order is made. I dealt with this, perhaps slightly elliptically, in a report published last week, which I produced as independent reviewer of the detention provisions. One of the issues that has caused difficulty on all sides of the Committee, and elsewhere, is the provision for merely reasonable grounds for suspecting as the basis for control orders, and indeed for detentions.
	In my report I drew an analogy between the situation we are considering now and the position faced by the managing director of a company researching into pharmaceuticals using animal experimentation. Such a person would be able to obtain a civil injunction from the courts if he was able to show, on the balance of probabilities, that a person or group of persons was posing a serious threat to his safety, or that of those associated with him. Such a civil injunction could have a number of conditions attached to it, including a penal sanction, if those who were enjoined failed to obey that injunction.
	I wonder what harm would be done, and what disadvantage there would be, if a balance of probabilities test were applied to all control orders. From the workability point of view, which is my viewpoint, it is arguable that if the Secretary of State made a control order against an individual because, on the balance of probabilities, he was satisfied that the individual was or had been involved in terrorism-related activity—and here I am looking at what is now Amendment No. 55, mentioned earlier by the noble and learned Lord the Lord Chancellor—there would be no disadvantage to the Government, the control authorities or the protection of the public. My first point concerns a better working standard of proof.
	My second point concerns the involvement of the judiciary. I listened with great care to the remarks made during the Second Reading debate on Tuesday by the noble and learned Lord, Lord Donaldson of Lymington, which may have been reflected, to some extent, in what was said by the noble and learned Lord, Lord Ackner, earlier today. Although I have carried out no formal consultation, I have a sense that senior judges are anxious about being placed in what is, in reality, the role of a Minister. I understood that to be the burden of what was said by the noble and learned Lord, Lord Donaldson, on Tuesday. I sense that to be a real concern with which I have some sympathy.
	The Supreme Court is now to be called the Senior Court, which is perhaps an ugly but more accurate expression of what it is. Of course, the Supreme Court or the Senior Court is a court of record. I believe that there is a distinction to be drawn intellectually and accurately between a superior court of record and a court that is not a court of record.
	If control orders are to exist, one must recognise that there may be emergencies that could not be brought before a court immediately as it simply would not be practical so to do. I hope one can accept that there is a necessity to deal with emergencies, but I shall leave those out of the equation for the moment.
	Would it be workable for a court which is not a court of record to be involved at a very early stage? I refer to those district judges at Bow Street magistrates' court who, on an everyday basis, if necessary, and at 24 hours-a-day availability, already deal with extensions under the Terrorism Act 2000. If someone is arrested under that Act and taken, say, to Paddington Green Police Station, and if the police, advised by the CPS, believe that 48 hours is an insufficient period of detention, they can apply for an extension and now if they believe that seven days is an insufficient amount of time, they can apply for an extension to 14 days. That matter was debated in this House some time ago.
	Such applications go before district judges, led by the chief magistrate at Bow Street. They are a small cadre of district judges who are very experienced in such matters and who understand the whole terrorism penumbra. Would it not be practicable and would it not make these provisions work better if applications for all forms of control order were brought before a district judge at Bow Street, or other suitably ticketed district judges, at the earliest possible stage—possibly before the order is made if there is time—so that they could be considered by an examining magistrate—a term I use advisedly?
	I believe that that would link well with one of the recommendations made by the Newton committee which expressed a desire to have something more like the continental system in this country. I do not favour that because I believe that we would be throwing out the baby with the bathwater. But there is an element of what the Newton committee said in this, as the suggestion I have just made would result in a workable system.

Lord Carlile of Berriew: I am suggesting something that is possibly better than the noble Earl has suggested: that the examining magistrate should hear the application—it may be ex parte—which would involve some examination of what one might call either information or evidence. I believe that we all recognise that in such cases it might have to be a hybrid. There are difficulties with the way in which evidence is presented in terrorism cases. But, yes, there would be an examination on the merits, with an automatic right of appeal in which, as I have said, a High Court judge would perform the usual function for which he is appointed, without his independence being undermined in the way feared by the noble and learned Lord, Lord Donaldson of Lymington.
	I do not want to speak repeatedly in the debates on this Bill, so I hope I shall be forgiven for raising this point now. In relation to the special advocates, who are dealt with in the schedule to the Bill, I hope that the Government will accept that currently there are some deficiencies, with which I have dealt in my most recent report, that have made it difficult for special advocates to function to full effect. Having examined a lot of material, including closed material, I am unequivocally of the view that some of the special advocates have been extremely effective. They have been able to carry out their jobs properly, as some cases show beyond any doubt.
	However, the atmosphere in which the special advocates work, particularly their difficulty in obtaining full instructions and also in being able to have appropriate contact with the people whose interests they represent, is in need of reform. I also suggest to the Government that perhaps a rather larger number of people should be on the list of potential special advocates and that they should now include, with great deference to those brilliant administrative lawyers who have been very good special advocates up to now, a substantial body of people experienced in analysing criminal evidence who may, on a daily and professional basis, be better suited to the function.
	I hope that those are useful suggestions to the Committee. If the concerns that I have expressed could be met, I believe that whoever is the reviewer of these new provisions would be looking at something more workable than what is at present set out in the Bill.

Lord Carlisle of Bucklow: I must confess that I am equally confused about the situation, and what we are actually debating. I am reminded of the judge—whose name escapes me, but the noble and learned Lord the Lord Chancellor will remember it—who once said to F E Smith, having heard his argument, "Mr Smith, I am none the wiser". To which F E Smith replied, "Your Lordship is none the wiser, but at least you are better informed". I feel I am better informed as a result of the speech of the noble and learned Lord the Lord Chancellor, but I am none the wiser as to where we really are.
	If I understand it correctly, we are all having a Second Reading heart-bearing session, where we say where we stand personally on the basis of amendments we have tabled. I was grateful to hear that my noble friend Lord Kingsland he had been kind enough to add his name to an amendment I tabled, which starts the procedure at an earlier stage. Rather than leaving it to the Secretary of State on his own volition to choose to make an order, it must be on an application by, I suggested, the Director of Public Prosecutions. The Director of Public Prosecutions can make that application only if he is satisfied that it is not possible for the person to be tried in the normal way. I think we all agree that, where possible, people should be tried in the normal way in the courts of this country. The powers that we are giving in this Bill should be used only in exceptional cases.
	The purpose of my Amendments Nos. 8 and 11 is to say that the Director of Public Prosecutions should be required to satisfy himself that the man is not able to face a fair trail before he makes an application for such an order to the Secretary of State.
	The other matter, which is covered in amendments that I have tabled to Clause 2, is that it is surely right that the control orders, whether derogating or non-derogating orders, should be treated in the same way by the courts. I was surprised to hear the noble and learned Lord the Lord Chancellor imply that an order that merely consisted of a curfew would be a non-derogating order. Surely any form of curfew, any form of order which required a person to live in a particular place or not to do a particular kind of work and all the various matters set out in the first clause of this Bill, are interferences with that individual's liberty. The noble and learned Lord the Lord Chancellor may therefore find that Article 5 goes far wider than the impression that has been given, that you need a derogating order only in a case in which a person is being locked up for ever.
	There is therefore an argument to be advanced that, for derogating and non-derogating cases—if they are be included—should go before the courts in the same way.
	My final point, which has not yet been mentioned, is about the question of the burden of proof. Currently, the Secretary of State merely has to have,
	"reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".
	That seems to be far too weak.
	With great respect, the Bill should make it clear on the face of it that the burden of proof rests upon the Secretary of State to make out his case for an order. I have suggested that it should be as high as the criminal burden of proof, although I appreciate that an alternative has been put down that it should be on the balance of probabilities. Having "reasonable grounds for suspecting" are not adequate grounds for the Home Secretary to act in a way which would lead to the person losing his liberty. The phrase should be either "satisfied beyond a reasonable doubt", as I have suggested, or, at the very least, "on the balance of probability". That also applies to the later clause, which deals with the derogation orders made by the Home Secretary.
	Listening to my namesake, the noble Lord, Lord Carlile of Berriew, I believe there is a real possibility that we could get a good deal more agreement in this Committee on these matters than appeared possible some time ago. It requires reflection, thought and the Government to give on various issues of principle which still remain.

Lord Wedderburn of Charlton: As noble Lords have pointed out, many of the proposals are based on the fact that you would know whether you are in Article 5 territory and that the necessary derogation may not be made in time for it to work. But, surely, the matter does not concern just Article 5. The noble Lord, Lord Carlile of Berriew, on the Liberal Democrat Benches, gave us a report a long time, which pointed out that some obligations imposed by the Home Secretary from the list on page 2 of the Bill may also amount to the termination of a civil right. Article 6 surely demands a fair trial on the deprivation of a civil right.
	I have had conversations with noble Lords who seem to think that it is a weird idea that the liquorice allsorts list on page 2 could have a selection for an application for a control order, of whatever kind, restricting the liberty of the controlled person and not depriving him of it.
	Even if one found that very difficult line with certainty, the list of controls that can be imposed from the liquorice allsorts list is so extensive that some civil rights are bound to be in jeopardy. If so, Article 6 demands a fair trial with all the jurisprudence that that entails in the European Court at Strasbourg.
	Although the Government refer to Article 5 in their papers, including those from the Secretary of State by way of a copy of his letter to Mr Davis and the odd note that came with it, which is unsigned but which I take to be his as well, and in their list, I do not understand why they refer only to Articles 8, 10 and 11, which provide for exceptions in cases determined by law.
	Why did the Government not address Article 6? Why did my noble and learned friend the Lord Chancellor not refer the Committee to Article 6? And why is there not a huge risk in virtually any effective order being made up of bits taken from Clause 1(3)? With respect to the noble Lord, Lord Carlisle of Bucklow, on the other Benches, who knows much more about the matter than I, this involves questions of burden of proof.
	The Government used to think that it involved questions of burden of proof because they have had three goes at dealing with the point. First, the Secretary of State was to make the order on a very slender basis as far as concerns burden of proof; secondly, they quoted, in the note that came with the Secretary of State's letter, a dictum—or they thought more than a dictum—to the effect that burden of proof was not really the way to look at it with all risk assessment. They said that that was in the speech of the noble and learned Lord, Lord Hope, in the Rehman case. I was puzzled. I thought I must have missed it because the noble and learned Lord, Lord Hope, did not sit in the Rehman case. So I had to read it all again.
	This is an official government document with many weeks of preparation. The passage is from the speech of the noble and learned Lord, Lord Hoffmann. That is very significant. It is not a technicality, because not every member who sat in the Rehman case agreed with the approach of the noble and learned Lord, Lord Hoffmann. Indeed, the Government have sometimes had difficulty with the approach of the noble and learned Lord, Lord Hoffmann, to these matters.
	One might have thought the Government would be careful about that, especially because the noble and learned Lord, Lord Steyn, was sitting on the Rehman case. He deliberately and carefully set out in a lecture in Belfast last November the reasons why he disagreed with the whole approach of the noble and learned Lord, Lord Hoffmann. Indeed, towards the end of that lecture to the Judicial Studies Board, he observed that some people found it strange that both he and the noble and learned Lord, Lord Hoffmann, came to the same result in Rehman, so different are their approaches.
	So, the Government quoted a dictum from the noble and learned Lord, Lord Hope, who did not sit on the case. They then omitted to notice that the dictum made by the noble and learned Lord, Lord Hoffmann, had been subjected not merely to academic commentary—I know that does not help much in some quarters—but had been put in doubt by the noble and learned Lord, Lord Steyn. Why was that not disclosed to people who do not regularly read the relevant law journals and law reports?
	That was the second tack that the Government had. They now seem to have gone off the burden of proof, although they are moving a later amendment to remove the word "burden", which makes the clauses they are trying to amend very strange indeed. However, we can deal with that later. It comes down to reasonable grounds for the application. It seems to me from the speeches made that we are getting very near to an agreement that the civil burden of proof is going to dominate in this process. At least that is an advance. But it certainly does not solve all the problems which I especially mentioned of knowing whether you are in Article 5 territory; and, whether or not you are, whether Article 6 is brought into play. What is the answer to those moving amendments on that?

Lord Judd: My Lords, before my noble friend sits down, will she respond to one point? I find her argument extremely persuasive. But does she agree that we are in danger in our deliberations of looking at this from a very legalistic point of view? As the noble Lord, Lord Carlile of Berriew, has reminded us, we are dealing with a very sinister and dangerous threat. To be able to deal with that effectively, the battle for hearts and minds is crucial. What has always been central to the layman in our legal system—and I speak as a layman—is that justice is seen to be done. That is why due process and the balance of probabilities are so important.
	We cannot simply look at this from the perspective of noble Lords in this House. We have to look at it from the perspective of a young member of the Islamic community in Bradford, subject to a lot of pressure and manipulation, who needs to be able to turn to a clear, convincing illustration that justice is being pursued as we have always understood it to be pursued in this country. Does my noble friend agree that that relates to her argument?

Baroness Kennedy of The Shaws: My Lords, I think that we would all agree on that. I chaired a meeting only recently of the Islamic Human Rights Commission, which was packed with young members of the Muslim community who feel that they are being targeted. Whatever good words are said on Front Benches about this not being a direct assault upon certain communities, that is how it is being perceived and felt. It is perceptions of injustice that lead to terrorism and support for terrorism.
	I accept entirely that there are problems with an organisation such as Al'Qaeda, as the noble Lord, Lord Carlile, said, which is not like other organisations with a command structure. Conspiracy charges can be difficult because an isolated young man in Slough could decide that he will take part in a suicide bombing without reference to any other leadership but simply because he agrees with bin Laden. However, the way to deal with that is to introduce the charge of acts preparatory, as the noble and learned Lord, Lord Lloyd, suggested. There are other methods for dealing with this within the structure that we know and respect and which are tried and true. That is where, I am afraid, the Government are getting this wrong. They are not sticking to the principles that we know work.

Lord McIntosh of Haringey: My Lords, the educational maintenance allowance is paid directly to them, in addition to the child benefit and child tax credit paid to the parents.
	Most apprentices do not need financial support because they are based with an employer who pays their wage. The review recommended that all employer-based apprentices should be paid a weekly wage of at least £70 to £80.
	Some young people in some occupations may need preparatory training before they are ready to proceed to a waged apprenticeship. For example, they may need to acquire basic skills or develop personal and social competencies, particularly if they have been disengaged from mainstream education. The Learning and Skills Council for England and the devolved administrations therefore fund and manage unwaged training places for such young people. An example of this is the Entry to Employment programme in England, which is delivered on behalf of the Learning and Skills Council by local training providers such as voluntary organisations.
	This is why I call the Bill the Padraig Harrington Bill. My wife is the chair of a charity in north London called the Harrington Scheme. It provides horticultural training for young people with learning disabilities. They are exactly the kind of people for whom this programme is designed, because they are simply not able to stay in school or college and they are not able to get paid jobs. The charity, with the support of the Learning and Skills Council, provides horticultural training. Fifty per cent of the trainees land up in jobs at the end, and the others are able to join a scheme where assisted work is available for them. The problem which that scheme addresses is that those who are aged 16 to 19 simply do not have the support that they would enjoy if they had stayed in school or college. That is what this Bill is designed to correct.
	At the moment, young people who want to pursue an unwaged training programme such as the Harington Scheme are entitled only to a minimum training allowance of £40 a week. The difference between the financial support available for that form of learning and the generous package available for those who stay at school or college distorts the choices of young people. Together, child benefit and child tax credit make up an important stream of income for a young person's family. The loss of that money may mean that some low-income parents are no longer able to support their child. The young person may be forced into a course at college— if he can get in—that may be inappropriate for him, rather than join a course with a training provider because of the additional financial support available. He may end up dropping out of learning altogether if the course does not suit him.
	We believe that young people should be able to choose their learning route, rather than making a decision based on the amount of financial support available to them. That is why the Bill is important. It is the first step in removing the distinction between education and unwaged training in the financial support system. The changes will strengthen young people's choices between learning in the classroom and the workplace. They will bring about additional investment in financial support for unwaged trainees of around £100 million a year, delivering more money for tens of thousands of young learners, especially those from low-income families who are unable to live in the family home.
	The second damaging anomaly that the Child Benefit Bill will enable us to remove is the automatic cut-off in financial support at the age of 19. The current rules are based on the assumption that post-16 participation consists of two years of A-level study at school or college, completed before the 19th birthday. That model of post-16 education does not match the pathways and experiences of many young people who continue in learning today. Each year, thousands of young people reach the age of 19 while still studying for non-advanced qualifications. Many will be in that situation because their education has been disrupted. Vulnerable groups such as care leavers, young offenders and homeless young people often face challenges that prevent them from completing their non-advanced education before the age of 19.
	Under the current rules, child benefit and child tax credit cease on the young person's 19th birthday, irrespective of whether they are studying. Young people from low-income households may be forced to leave their course before achieving their qualification because of the pressures on family finance. The situation is even worse for young people who cannot live in the family home. Their entitlement to income support may cease, and they must instead claim jobseeker's allowance, which requires them to be available for work rather than studying full-time. The loss of income support triggers the loss of housing benefit, making it impossible for those young people to continue on their course without losing their home or running up rent arrears. The personal testimonies which the Government received during the review revealed the distress and frustration caused by those rules. It is a wasted investment for government and young people if they drop out. That is why we are proposing to reform the rules on child benefit, child tax credit and income support so that young people who reach 19 while still studying for non-advanced qualifications are supported until they complete their course, up to an age limit of 20. About 80,000 young people a year will benefit from the measure.
	The Child Benefit Bill is the essential first step in implementing these two important reforms. The Bill restructures the existing definition of a "child" in child benefit rules by introducing a separate definition of a "qualifying young person". A "child" will be defined as a person who has not reached the age of 16, so there is absolutely no impact on the universal payment of child benefit for under-16s. The Bill enables the Treasury to lay regulations prescribing the circumstances in which someone aged 16 and over is defined as a "qualifying young person". That replicates the approach that is already used in the legislation for child tax credit, ensuring greater consistency in the criteria for the two streams of support.
	The Treasury published draft regulations on 10 January to indicate how it intends to use the powers in the Bill setting out the proposed new entitlement for unwaged trainees and 19 year-olds completing a course. The Government intend to implement these reforms in April 2006, along with the corresponding changes to child tax credit and income support which will be made via separate amending regulations.
	It is essential that we equip all our young people with the skills and qualifications they need to face the challenges and opportunities of global economic change over the next few decades. Choices made at 16 matter a great deal. The Bill will help to support those choices by removing some of the worst financial barriers to learning. I have great pleasure in commending the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)

Lord Haskel: My Lords, I, too, thank my noble friend for introducing this Bill, and I want to join my noble friend Lady Gale in saying a few words in support. In various incarnations, both in government and in opposition, I have spoken up in support of skills training in the DTI. But do not just listen to me. Listen to what Steve Stewart has to say about the Bill.
	Mr Steve Stewart is the Deputy Chief Executive of Wakefield District Council in Yorkshire. He is facing the difficult problem of young people coming into the labour market without basic skills—and I mean basic numeracy and literacy. He is busy developing a public service agreement with local partners to tackle worklessness and skills development, because in the district of Wakefield 24 per cent of boys and 13 per cent of girls enter the labour market at 16. That is significantly higher than the national average for both sexes.
	Mr Stewart has said that the proposals in this Bill will help clear some of the hurdles identified by Wakefield council in terms of supporting skills development. It will assist the council in encouraging students to stay on at 16 to develop skills in sectors such as the construction industry, which are vital to the regeneration of the district.
	He also pointed out that the proposals will contribute to beating the poverty trap that encourages young people in Wakefield to enter low-paid jobs with low prospects at the age of 16 rather than remain in learning. He thinks that the Bill will help to send a clear message to the traditionally hard-to-reach communities about the advantages of remaining in learning and training. These are communities where the lack of educational achievement and basic skills goes back generations. Noble Lords have long recognised the need to break that chain. It is hoped that the Bill will be one more small way of doing that.
	The point I want to make is that this is not a politician speaking. This is a public official at the sharp end, trying to deal with the social and economic effects of a lack of skills. Mr Stewart is reluctant to put youngsters into dead-end jobs, and, frankly, very few unskilled jobs now exist, either dead end or otherwise. He needs the flexibility and freedom to provide some benefit or allowances while the public service agreement is in operation. That is precisely what this Bill addresses.
	Wakefield is not alone: 25 per cent of our youngsters reach the age of 19 without a level 2 or equivalent qualification. We compare very badly with other countries.
	As the Minister explained, one of the purposes of the Bill is to introduce the educational training allowance. I agree with him that the minimum training allowance distorted choice and made the transition from school to work more difficult. Parents of young people aged 16 and over and under 19 in non-advanced education receive child benefit and child tax credit, but the parents of young people of the same age group in unwaged training do not. It is this which distorts the choice and sometimes pressures young people into a course at college who might otherwise have benefited from training at work. The move to an education maintenance allowance is to be welcomed as it helps to remove this distortion.
	I understand that there are around 80,000 unwaged trainees across the UK and that the Bill will provide the same financial support for either education or work-based learning. The choice will be theirs.
	The more suspicious-minded of us will perhaps ask, "Ah, does this mean that businesses can stop paying their trainees by encouraging them or their parents to take advantage of these allowances?". Perhaps the Minister can tell the House how the Government are going to safeguard against that. There are safeguards with education maintenance allowances. The EMAs are strictly monitored; there is a learning agreement and FE colleges are set up to track a student's progress to make sure that the money is not wasted. Will there be similar requirements where young people receive unwaged training at businesses or at charities? There is a great deal of administration involved in this which small firms or voluntary organisations may not be able to provide.
	In addition, the Minister told us that replacing the minimum training allowance with EMAs will move money away from the young person to the family. Are the Government satisfied that this will not be exploited by the adults to the detriment of the youngsters?
	Some may say that with employment at record levels in Britain, who needs this? The answer is that the skill gaps in Britain remain stubbornly persistent. Those who attend business meetings—and I see in their places one or two noble Lords who do attend such meetings, particularly business breakfasts—will agree that the most common complaint is a shortage of skilled staff. Obviously the Government must and are taking action to tackle this, of which the Bill is a small part.
	I hope that noble Lords on all sides of the House will join me in supporting the Bill so that tomorrow I can a send a copy of the Hansard containing the record of this debate to Wakefield council, with a note saying, "Keep up the good work. Help is on its way".

Lord McIntosh of Haringey: My Lords, that is helpful.
	My only other introductory remark—if I can get to it—is to comment on what the noble Baroness, Lady Gale, said about plumbers and professors. Some people would say that there is a greater need for plumbers than professors. I rather think that if you called out a professor you would get one in 10 minutes in many parts of the country.
	The noble Baroness made a valuable contribution because it was from personal experience involving a member of her family. She is right to say that one of the virtues of the Bill is that it removes the distinction—the discrimination—between education in a college and unwaged training. To that extent, I very much agree with her.
	I find it more difficult to respond to her question about what happens after the 20th birthday. The member of her family started unwaged training at the age of 18 years 11 months. The benefit of the Bill will expire on the 20th birthday, which is well before the programme of unwaged training is complete. The reason for not making it a later date was because we thought it undesirable from a young person's point of view unnecessarily to delay entering an unwaged training programme. The Paymaster General heard that point in the House of Commons and undertook to have a review.
	The noble Lord, Lord Haskel, made a valuable contribution. It referred to experience in Wakefield where, as he said, there is a significant lack of basic skills. That reminds me that I forgot to say when mentioning the Harington Scheme that it is for people with learning disabilities—those who would not get into further education or training in FE or sixth form colleges. I confirm to the noble Lord, Lord Higgins, that they are on entry to apprenticeship schemes funded by the Learning and Skills Council. Local LSCs are able to fund skills, although they have their own policies. But in most of the country funding is available to voluntary organisations.
	The noble Lord, Lord Haskel, asked whether there was a risk that businesses would stop paying trainees. They pay trainees when it is to their advantage to do so, and do not when it is not. Programmes are funded by the Learning and Skills Council and frequently include an element of college attendance. If there were a risk of businesses stopping paying trainees, they would not do it by this method. The number of apprenticeships has increased significantly under this Government. I do not have the figures in front of me, but the TUC has indicated support for these measures, which it would not do if employers were capable of exploiting them.
	The noble Lord also questioned whether young people could be exploited by their own families. If that were the case, it would apply much more widely to those in further education. I do not think that there is any evidence that they do. The benefits provide some money for the young person and some for the family, which is generally agreed to be the right way round.
	The noble Lord, Lord Oakeshott, asked how many of the 80,000 in the cohort would benefit. The answer is all of them. We have provided in draft regulations a full list of all the government-arranged training programmes, including entry to employment and comparable schemes in Scotland, Wales and Northern Ireland. None of the 80,000 will not benefit. It is a coincidence that there are 80,000 unwaged traineeships and also 80,000 between their 19th and 20th birthdays. No one should be led to think that there is anything other than coincidence in that figure.
	The noble Lord asked me a proper question from the Prince's Trust about why there are only government-supported training schemes and not work experience and more informal training schemes. That question was asked of the Paymaster General in another place who recognised that it is a significant issue. She said that there would be a response in the Statement accompanying the Budget in two weeks' time.
	The noble Lord also asked about likely behavioural training changes and their cost effect. The answer to the latter question can be answered very easily. It is a zero sum gain between further education or sixth form colleges and unwaged training. Both will now get the same financial support. The movement between those in colleges and those in unwaged training will not cost the Exchequer any more. We have given figures of £105 million, but the continuing costs will not be significant.
	As to whether it will bring in behavioural changes in the sense of new entrants, that is a valid point to which we do not yet know the answer. We have been unable to do a pilot as we did for educational maintenance allowances. It provides a better choice that is not distorted by financial considerations at the age of 16 or later. If the choice is between education and unwaged training, neither affects the Exchequer.
	I shall not go back to the little discussion with the noble Lord, Lord Higgins, about proceedings in the House of Commons but, as so often, he queried why the Treasury is responsible for this legislation. It is because Parliament passed it in the Tax Credits Act, the purpose of which was to integrate the tax system with family support. Since we now have 6 million families on tax credit, I do not think that there can be any serious doubt that it has not been advantageous. If there are queries about the administration of tax credits, I would only say that the Office of Government Commerce stated:
	"This is an exemplar of good programme management".

Lord Forsyth of Drumlean: I hesitate to intrude in the proceedings, surrounded by so many eminent lawyers, but I think that I may be uniquely advantaged—or disadvantaged—by not being a lawyer.
	Listening to the speech made by the noble Lord, Lord Thomas of Gresford, and to those of other noble Lords, I believe that there is some consensus on the central issue, which is that there should be due process and people should have an opportunity to know of what they are accused and be able to answer that in some way. I have much sympathy with the point made by the noble and learned Lord, Lord Lloyd of Berwick, about the dangers of putting the judiciary into a position where they act as a kind of cipher for Ministers. It was not clear to me whether he was ruling out what was being proposed by the noble Lord, Lord Thomas, and others—that there should be some due process. I think he was saying that there should not be judicial involvement in place of the role being carried out by the Secretary of State.
	I do not wish to repeat arguments that have already been made. However, I have one specific question to which I should very much like an answer. I have read the amendments, the Bill and all the material that has been made available, but I am still slightly puzzled. I apologise for raising a question that may not seem central to the larger issues in the amendments, but, in order to understand the Government's position on their amendments, I need to know how this is going to work north of the border.
	As I understand it—and again, I am not a lawyer—under the devolution settlement, the Scottish Parliament is not allowed to do anything that is in breach of the European convention. So, how will the provision work in respect of Scottish individuals? I understand that "Secretary of State" means any Secretary of State, but if we are talking about somebody living in Scotland, who is the Secretary of State? It is clearly not the First Minister, so is it the Lord Advocate?
	Furthermore, which police interest will be involved in making an arrest? I hope that the noble and learned Lord the Lord Chancellor can reassure me that there is no suggestion that a Secretary of State in the Home Office or for another English department would ask a police officer from England to go up to Scotland to arrest somebody there. But that is how I read the Bill. I cannot see any provision in the Bill or in any of the amendments for Scottish law and the Scottish judicial process to be carried out. The point was raised on Second Reading by my noble friend the Duke of Montrose, so it is a point of which the Minister has had notice and on which I am sure he will be able to answer fully. The very last thing one would want to see is further confusion in the media north of the border about the precise role as it affects people in Scotland and the devolved Administrations.

Lord Falconer of Thoroton: This has been a constructive and interesting debate on very important issues. I shall go through it in stages.
	The first question raised was whether we need something other than the normal criminal process in order to assist in fighting the terrorist threat that we currently face. There are those among your Lordships—among whom I include, I hope not exclusively, the noble and learned Lord, Lord Lloyd of Berwick, the noble Baroness, Lady Kennedy of The Shaws, and, I think, the noble Earl, Lord Onslow—who take the view that we should not have any sort of control orders at all, but that we should just stick to the normal criminal process.
	That is a view with which the Government disagree, on the advice of the security services; it is a view, I think, with which the Newton committee disagreed; it is a view, I think, with which the Conservative Party disagrees; and I think it is a view with which the Liberal Democrats also disagree. So the three main political parties are in a consensus, supported by the view of the Newton committee, that something other than the ordinary criminal process is required in order to fight against the current threat of terrorism.
	If that argument is accepted, then it is necessary to work out what that process should be, seeking to balance as much as possible the rights of the individual against the need effectively to fight terrorism. I respectfully suggest that the debate we are having in Committee concerns how we bring that about. I understood the words of the noble Lord, Lord Forsyth of Drumlean—I expressed my gratitude to him at the beginning of the day—to be that he accepts that as well, but the issue is how we get to a point where we have a suitable process?
	The second issue that arises, once one accepts the need for some type of process, is what that process should be. We submit that the right process is a control order process rather than, as the Newton committee suggested we look at, some type of investigating judge process. One fears that the investigating judge process would lead to precisely what the noble and learned Lord, Lord Donaldson of Lymington, warned us against, which is making the judge even more of a player than he otherwise would be. The idea suggested by the Newton committee that the judge should sift through the evidence and put the case to another judge is quite inimical to the way that our judges operate and I do not think that that would be appropriate.
	In effect, that is the only real alternative that has been advanced, apart from control orders. Therefore, we are the only body—namely, the Government—who are actually proposing what that process, which is not the criminal process and which we say is necessary, should be.
	The difficulty with control orders, which everyone has eloquently identified, is this: the decision about security is normally a decision that would be made by the Executive—in practice, the Home Secretary. But, plainly, you cannot just leave it to the Home Secretary. There must be some judicial oversight to protect the citizen in relation to it and that judicial oversight must be as fair as it possibly can be to the citizen.
	Where is the balance to be struck? Our initial proposal was that, in relation both to those orders that deprive a citizen of his liberty under Article 5 and one that did not, was that the Home Secretary should make the order, which should then be subject to easily accessible and stringent judicial oversight—I use the word neutrally. Strong representations were made, both in another place and outside, that depriving someone of his or her liberty under Article 5 should not be done on the say-so of the Executive; it should be done only by a judge.
	Despite the concerns that have been eloquently expressed by the noble and learned Lord, Lord Donaldson, that this would put a judge in a different position from that which is normal, in striking the balance, we have decided that the orders in relation to those deprivation of liberty cases should in the first instance be made by the judge, because you are depriving someone of his liberty.
	The suggestion made by the noble and learned Lord, Lord Donaldson, addressed constructively the dilemma that we face. It should normally be the Executive, but—and I do not know whether he accepts it or not—if you are going to involve a judge, the noble and learned Lord is saying, "Still respect the fact that it is the Secretary of State's decision". His proposal is that although you cannot enforce it without a judge, the Home Secretary can be allowed to enforce it only "with the leave" of the judge. The noble and learned Lord accepts the principled starting point that it should normally be the Executive, but pre-order effectiveness scrutiny by the judge is provided. That is consistent with the position that we have reached and seeks to respect the fact that the judges do not normally make these types of evaluations. We need to take away that suggestion and consider it.
	The impact on someone of depriving them of their liberty is why we have taken the very unusual step of saying that there should be pre-judicial intervention before the order is made. But the same arguments do not apply when you are not depriving someone of their liberty. In that case, Article 5 of the convention is not engaged, but other rights are. Articles 8, 9, 10 and 11 are all engaged. The points made by the noble Lord, Lord Stoddart of Swindon, are absolutely right; we have to be very anxious in relation to the examples of the orders contained in the Bill, such as preventing people from associating with other people or generally restricting the businesses in which they can be involved. There needs to be substantial oversight in relation to that.
	When an order is made which involves an interference with, for example, your rights of association, your right to free speech or your right to privacy, it can be made without offending the European Convention on Human Rights, but only if there is a legitimate aim, such as national security, and it is proportionate. So if the Executive went too far, the courts could strike it down. You would not reach the circumstance posited by the noble Lord, Lord Stoddart of Swindon, because the court would strike it down, unless there was a proper basis for it. You could stop someone engaging in a particular business under these provisions only if it was necessary due to national security and the precise terms of the order were proportionate to your aim.

Lord Falconer of Thoroton: Since December we have had to consider what powers we think we need. The noble and learned Lord is absolutely right to draw attention to the statements that have been made as the process has developed. I see in the Chamber noble Lords who have been Home Secretary. I am not inviting them to intervene—at which point they all perk up and appear to be about to intervene. I see another one over there. This is the biggest collection of Home Secretaries in one place that I have seen. From time to time they have seen security situations change. Advice is given and, ultimately, whatever has been the position in the past, the Government, and in particular the Home Secretary, have to make a judgment about the necessary powers on the basis of the advice that he or she receives at that time. It is absolutely right that one will see assessments change from time to time; people have different views about the threat and one can only work on the basis of the threat as perceived by the Government at the time.

Lord Campbell-Savours: My noble friend responded very constructively to the suggestions made by the noble and learned Lord, Lord Donaldson, and conceded that there might be a need to consider further what he had to say. I wonder whether my noble and learned friend might care to comment on the intervention of the noble Lord, Lord Carlile of Berriew. He made us think about another way of dealing with these matters that did not require immense compromise, but which tweaked the system in a way that might satisfy many Members of the Committee.

Lord Plant of Highfield: I am sorry to disagree with my noble and learned friend on that issue. Assuming for the moment that the Government's proposal goes forward, I wonder whether he would clear up a couple of points, one of which was slightly in dispute at Second Reading. It is a straightforward forward, and it would be good to hear his view.
	When it comes to the judicial review of a non-derogating order, the noble Lord, Lord Thomas of Gresford, said that this was a rather weak sort of power, because it was largely to do with procedures; whereas I thought, following the passage of the Human Rights Act, that judicial review could bite a good deal more than that because it would have to involve proportionality. How could a judge make a judgment on the issue of proportionality in a way that was independent of the merits of the case? If that is so, then it would slightly strengthen—not sufficiently to overcome my objections—the Government's view about the power of judicial review. Of course, my interpretation of that may not be correct, and it would be good to hear the view of my noble and learned friend on that point.
	Secondly, I am very keen that this system of control orders, to which I am not opposed, should be made as compliant as possible with convention rights. The issue I have is that the list of obligations in respect of which control orders can be made is only illustrative. It is not a complete enumeration of all the possible obligations that might be imposed on people. Yet, as I understood it—and, again, I may be wrong about this—convention rights other than Article 5 could be infringed if it was in a way prescribed by law. Does the fact that the list of obligations is not exhaustive satisfy the principle that these obligations would be sufficiently prescribed by law if the Bill became an Act more or less as it currently is?

Lord Falconer of Thoroton: Article 5 would be infringed is somebody was deprived of his liberty.

Lord Waddington: I am very grateful to the noble and learned Lord the Lord Chancellor for much that he has said. He has clarified a number of matters. But there is one matter which he certainly has not clarified. Is it not wholly artificial to give the judges a different role in the case of derogating control orders from their role in the case of non-derogating control orders, when the noble and learned Lord the Lord Chancellor himself cannot say which of the requirements in Clause 2 will offend against Article 5 and which will not?
	The Bill has had to be drafted as it has because one looks at all the different requirements that can be made of a person under Clause 2, but one cannot say with any certainty whether a derogation is necessary. If that is so, surely there is the very strongest case for simplifying the Bill by having the same judicial intervention in the case of derogated control orders as in the case of non-derogated control orders. If the noble and learned Lord would concede that, we really would have got somewhere today.

Lord Mayhew of Twysden: I am grateful to the noble and learned Lord the Lord Chancellor. Would it be clear in the vast majority of cases? The Government are saying under their scheme that it is all right not to have a judge involved in a non-derogating case, but in a derogating case he will be involved.
	Quite some time ago—before the adjournment, I think, but it may have been afterwards—I was perturbed to hear the Lord Chancellor say in relation to paragraph (o), in this long list of 15, that,
	"a requirement on him to report to a specified person at specified times and places",
	would not be an infringement of his rights guaranteed by Article 5. But if that is imposed upon me, it is an imposition upon my liberty not to be at that specified place and at that specified time. As the noble and learned Lord said a minute or two ago that Parliament was to decide these things, I wonder whether we are being offered anything like a sufficiently clear watershed between one category of case and the other.

Lord Falconer of Thoroton: I think that the question is directed to where is the defence for the agent of the state on the basis of the proposition advanced by my noble friend Lord Wedderburn. If the position was that it were an unlawful order because it was either disproportionate or because it was not pursuant to a legitimate aim that justified it there would not be a defence for it. That is the law because we are setting up a legal framework in respect of which those matters can be judged.

Lord Falconer of Thoroton: I did not deal with that question because that issue will be dealt with separately when we come to Amendment No. 126. I think that it is covered also by Amendment No. 8. Amendment No. 8 is in a separate grouping so we will come to it. Enjoyable though it is to discuss it, I ask that we postpone discussion of the role of the DPP until we come to appropriate amendment, which is Amendment No. 8.

Lord Thomas of Gresford: I am grateful to all noble Lords who have participated in this interesting and very important debate. I am particularly grateful to the noble and learned Lord the Lord Chancellor, who for well over an hour has endured an expert cross-examination by noble Lords. At times I thought that under Magna Carta he would have been facing trial by his peers, the charge being that the reason why the distinction between foreign nationals and British citizens has been dropped is because the Law Lords have said that there can be no discrimination under the European convention. His defence has been to say no, an unnamed number of terrorists who are British citizens have suddenly come out of the woodwork over the past few months.
	If we were to pass judgment, we might not do so in the Lord Chancellor's favour. I was reminded of a short debate held in this House several years ago when capital punishment was finally abolished. We considered whether Life Peers should be hanged with a silken rope or by a hemp rope like everyone else. Lord Williams of Mostyn determined that a hemp rope would do very well.
	Do we need control orders at all? That matter was raised by the noble and learned Lords, Lord Lloyd of Berwick and Lord Donaldson of Lymington, and by the noble Baroness, Lady Kennedy of The Shaws. I understand their position to be that the judiciary might be tainted by appearing to rubber stamp an administrative decision. I do not see it that way because, when the Government are in litigation with an individual, a judge will frequently find in favour of the Government in judicial review proceedings. No one would suggest that the judge is tainted by the fact that he has found for the Government in a case involving judicial review. Provided that there is a proper case, I respectfully suggest that no one could suspect a judge of being tainted by his conclusion.
	It is more a question of trust. Do we trust the Government to reflect properly the information they receive from the security services in relation to terrorism? Members of my party have come to the conclusion that we must trust the Government in this. We are strengthened by the fact that the view that there is a very considerable terrorist threat has been expressed on previous occasions and again today by my noble friend Lord Carlile of Berriew. So we concede that control orders are required.
	However, once we come to that conclusion, we are no longer dealing with immigration law. I am grateful to the noble Lord, Lord Stoddart, who stressed the point that everyone in this country is now involved and at risk. When in 2001 we were dealing with the legislation brought forward in the aftermath of 9/11, someone in the Home Office used the wheeze: "We cannot just intern people. We will use immigration control"; the let-out being that the people arrested and put in Belmarsh could walk out any time they wanted, provided they went abroad to a country that would receive them. My noble friends and I said at the time that that would not satisfy the European convention, and three years later we were proved right.
	As for SIAC, to which reference has been made, at the time that Bill was introduced it was a rather lowly tribunal dealing with immigration appeals. When we pointed out that the provisions would be subject to judicial review, the Government's answer was to make SIAC a special court of record and therefore immune to judicial review at the time. We seem to be going in the same direction here.
	The longer I listened to the debate, the more strongly I came to the conclusion that we must have a common procedure for obtaining control orders and that the Secretary of State must apply to the court. The court should follow the procedures set out in government Amendment No. 80 which, while broadly speaking are right, we will seek to amend. At a very early stage, an application will be made to a judge, who will make an interim order.
	Turning now to the point made so valiantly by the noble Baroness, Lady Hayman, if counsel for the Secretary of State applies to the judge for an interim order within a short time and asks for four or five restrictions out of the list—the liquorice allsorts set out in Clause 1—the judge could respond by saying, "If you get all you are asking for you will be in derogation of Article 5, but you can have two or three". The judge can decide the interim order under this procedure without involving a breach of Article 5.
	The next stage for the Government—except, of course, that they are limited to derogating control orders as drafted—is that there is then a full hearing when the court may confirm the control order or revoke it, but essentially make a decision on its merits. We say that this procedure can apply to all control orders, and that is what we will be seeking.
	As I said initially, this is only a part of the position. Having a judge decide matters is useless unless there is proper due process. We shall debate that issue either later today or on Monday, so I hope that the Committee does not think that we are finished at this stage. This is only a part of the proposals we are putting forward.
	The noble Lord, Lord Forsyth, has pursued the point about which policemen will be involved. I have often thought of what would be the situation under the Government's proposals, where the Secretary of State makes the order and you, the suspect, are at home when the knock comes on the door in the middle of the night and you open the door. Who is there? Is it a policeman? There is no provision for that in the Bill. Is it a messenger of the Secretary of State? The Committee will remember my reference at Second Reading to Entick and Carrington and what happened in the 18th century. Is it the tipstaff from the court? Or could it be that we should have recourse to a resource which has not been used for many years—the High Sheriff?
	The Committee will recall that a great deal was said about "men in tights" when there was an invasion of the House of Commons. We have a nationwide matrix of men in tights carrying swords who, since the abolition of hanging, which they used to organise, have been looking for a role. Perhaps this is it. When the knock comes on the door and the terrorists go to the door, there is the man in tights, not dressed as Black Rod would be dressed but in a velvet suit in addition.
	I shall not detain the Committee much longer. We shall return to this matter on Report. For the moment, I beg leave to withdraw my amendment to the amendment.

The Duke of Montrose: In the truncated way in which we are addressing the Bill, two amendments to which my name is attached are in this group. I wish to speak to Amendments Nos. 37 and 38 now. So far as I can see, the main reason that they are in this group is that they relate to Clause 1 and we have simply lumped together as many amendments relating to Clause 1 as can conveniently be grouped.
	Amendment No. 37 provides that nothing in the Bill,
	"shall authorise the disclosure of information subject to legal privilege".
	That issue has been put to me by the Law Society of Scotland. The reason for it is that Clause 1(3)(n) makes provision to require an individual to comply with a demand to provide information. Article 8 of the European Convention on Human Rights enshrines the right to privacy. Scots law has traditionally protected the relationship between a solicitor and his or her client, and has made provision for the doctrine of legal privilege. To ensure that such communications remain protected, provision should be made in the Bill to the effect that Clause 1 will not extent to the disclosure of such information. This amendment seeks to achieve that.
	Amendment No. 38 would ensure that reference is made in the Bill to the protection against self-incrimination when an individual is providing information pursuant to a requirement of the Act. The reason that the Law Society of Scotland believes that protection against self-incrimination should be referred to in the Bill is to ensure that an individual's rights are preserved.
	, in which the applicant complained about the imposition of a fine for his refusal to produce bank statements and legal papers that Customs authorities believed to exist but could not find during a legal search of the applicant's premises.
	the court found a breach of Article 6(1) in circumstances where a company executive was compelled to provide information about the business activities of the company to one government authority which turned the information over to prosecuting authorities for use in subsequent criminal proceedings against him. By referring to the protection on the face of the Bill, an individual responding to a request made under this Bill will be aware of the extent of his or her rights and responsibilities.

The Earl of Onslow: My Lords, the Americans have something known as "Taking the fifth", which says that you need not answer any question that may incriminate you. Subsection (3)(n) says that unless you do answer a question that may incriminate you, you can go down for five years. It says, as my noble friend on the Front Bench said, that you have to answer questions from foreign police forces if they are asked over here, that you must answer questions from our own police force, and that you may not avoid them.
	That subsection would fit very happily in the rule book of the NKVD or the Sicherheistdienst of Mr Hitler. These are the instruments of tyrants—I use the word deliberately. To force people to answer questions under threat of punishment to incriminate themselves is the instrument of a tyrant. If that is not against the European Convention on Human Rights, this building is a funfair.

Lord Plant of Highfield: My Lords, I support the amendments, especially the one in the name of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The list of obligations set out in the Bill is long, onerous, open-ended and somewhat indefinite. A good case was made by the noble Lord, Lord Thomas of Gresford, to freeze the set of obligations at this and not to have others that could be brought in using the enabling part of the legislation, rather than putting them through by extra legislation.
	I have not really thought about this, but I am also rather in favour of the point made in the amendments tabled by the noble Lord, Lord Kingsland, about being involved in elections. That relates back to something said by the noble Lord, Lord Garden, about hearts and minds. Someone who has not been convicted of a criminal offence should not be prevented by the Bill from being engaged one way or another in the democratic process. It might be regarded as an advantage for that to happen. I may be na-ve about that, and I have not had a chance to think about it very much, but it is, on the face of it, an attractive idea. I would be prepared to back such amendments.
	The next point relates back to a discussion that we had on the first group of amendments. I am pretty convinced by what the noble Lord, Lord Kingsland, said about Article 6. I believe that that needs careful consideration. I hope that we shall get a detailed answer to that.
	I have been bothered by the point made by the noble Earl, Lord Onslow, no the obligation in subsection (3)(n), in the sense that there will be punishment for not answering self-incriminating questions. That is quite a departure and we would need very strong reasons for going down that road, rather than just approving all the obligations en bloc, even if they were frozen as they stand and not extended.

Lord Carlisle of Bucklow: I wish to speak to Amendments Nos. 8 and 10. Although I said earlier that I was totally confused, the situation has been made considerably clearer by the last, very long intervention of the noble and learned Lord the Lord Chancellor. I am now a little wiser, as well as being better informed.
	I am still concerned that there is no method in the Bill that starts the whole process. I accept that there are cases involving terrorists that cannot possibly be tried in the normal courts of this country. We have, therefore, to find some means by which those people who would otherwise be a danger can be dealt with, in a way as near as possible to that which would provide for a reasonable trial. It follows that both sides of the House should desire control orders to be limited in numbers. Such an order, whether or not it deprives an individual of their liberty, could still be of a draconian nature. That being so, one should be sparing in its use and be absolutely sure that before the procedure starts, someone has satisfied himself that it is not a case that can be dealt with by the normal courts.
	The purpose of my Amendments Nos. 8 and 13 is to achieve that end. As it stands at the moment, whether one looks at the Bill or the amendments that we are about to pass, it says that the control order shall be made by the Secretary of State.
	I believe that the Secretary of State should have that power only on application being made to him. I suggest that that application should be made by the Director of Public Prosecutions or on his behalf, and before making that application he should have done all that he can to satisfy himself that it is not a case that can be tried in the normal way.
	With respect to the Lord Chancellor, it seems that such a provision provides a greater safeguard than leaving it, as it does at the moment, to the idiosyncrasies of the Home Secretary of the day. I hope that the Lord Chancellor will say that some means must be found—whether I have the right one or not—whereby, before a control order is applied for, someone satisfies himself that no other method of trying the case is possible.
	While on my feet, I turn to the next group of amendments, as Amendment No. 10 happens to be in my name. The group deals with the burden of proof. At the moment the Bill, as originally drafted, says that,
	"The Secretary of State could may make an order . . . against an individual if he . . .
	has reasonable grounds for suspecting that the individual is or has been involved in terrorism".
	I do not believe, with respect, that "reasonable grounds for suspecting" is adequate. It is important that on the face of the Bill there should be words that make it clear that the burden of proof rests on the Secretary of State when he makes the application and that there should be a standard of proof before he makes that application.

Baroness Hayman: I have considerable sympathy with the case that was put forward by the noble Lord, Lord Carlisle of Bucklow, because it is essential to limit to an irreducible minimum the number of control orders that are issued. That is not to take an absolutist view; I believe that there will be an irreducible minimum of cases where control orders are the only way forward. I welcome the Government's amendment, because there is a danger, once a control order has been made, of the impetus for prosecution being lost. Amendment No. 126 is therefore very valuable.
	However, there is a problem in taking an absolute view that it is essential to look at the possibility of prosecution in advance in the state of the law as it is at the moment without the offence, to which the noble and learned Lord, Lord Lloyd of Berwick, has drawn our attention on many occasions, and to which the Government are committed.
	One issue that we discussed in the Newton committee was the dilemma faced by a Home Secretary who had compelling, but non-evidential, information about a person being involved in terrorism, but firm evidence of a low-level criminal offence such as credit card fraud.

Lord Blackwell: Before the noble and learned Lord responds to this debate, perhaps I may raise just one question which I hope he will address. As a non-lawyer, I hesitate to trespass in this tricky territory. However, having read the Bill and listened to this debate, I believe that the one thing that is missing is clarity about what opportunity individuals subject to a control orders will have to understand and respond to the cases against them. I can find only one mention of it, in Amendment No. 12, tabled by my noble friend Lord Kingsland. Perhaps I have missed it or it is implicit in the procedure. However, it is important that we are clear on this. There are obviously difficulties in laying out evidence, but we need to make clear what opportunity the individual will have to understand the case and respond to it.

The Earl of Onslow: My Lords, I want to go back to this. Clause 1(3)(n) refers to,
	"a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand".
	If the order says that you will answer a question from PC Plod about where you were going and you refuse, you will be slammed up. That is the offence.

Lord Falconer of Thoroton: My Lords, the point that I am answering in a lumbering way is that you can ask questions to prevent a terrorist outrage, but you cannot ask questions to convict the person of a criminal offence. It is perfectly legitimate that if, for example, you have information that suggests somebody has planted a bomb on the Tube, you are entitled to ask, "Where is that bomb?". If the person says, "No. I won't answer", breach of proceedings could be brought.
	You are able to ask that question because you are trying to avoid an atrocity. What you cannot do is simply ask questions with a view to convicting that person of another criminal offence. That is the distinction I was making—rather slowly, I accept—in my answer. With respect, that seems to me to be perfectly reasonable.

Baroness Hayman: I shall enter the debate, but it probably will not help at all. Asking where a bomb is is a completely legitimate question but there are two possible answers. If the answer is, "I know, but I'm not going to tell you", that is a breach and I could find that being a criminal offence acceptable. The problem comes when the suspect says, "I don't know. You've got the wrong person here." If that is not answering the question, and is therefore a criminal offence punishable by five years' imprisonment, it is very difficult. How do you decide which of the two it is?

Lord Falconer of Thoroton: I am grateful for the help that the noble Lord, Lord Kingsland, has given me in that respect. I hope, by the example I have given, that I am identifying the sorts of question that it is legitimate to ask the person who you believe is a terrorist and who might have information that might stop an atrocity. It will not be limited to the sort of the information I have given; it could also be, for example, to give the names and numbers of bank accounts where there is money that is being used to fund terrorism. It could be to identify other people who are in league with you in relation to this particular proposition. That seems to be particularly legitimate.
	There is an additional answer which I have not yet given; that sort of question is legitimate if, as the noble Earl, Lord Onslow, rightly identifies, it inevitably involves you in identifying the fact that you have committed a crime. By saying where the bomb is, you might necessarily indicate that you are involved. That could not be used against you in the subsequent prosecution, but it is a perfectly legitimate question to ask.

Lord Falconer of Thoroton: The burden of proof, as provided for in the Bill for a non-derogated order, is reasonable suspicion that he is or was a terrorist and, for a derogated order, satisfying the balance of probabilities that he is or was a terrorist. There is no burden of proof specified in relation to whether an order is necessary to prevent terrorism—those are not the exact words, but give the broad thrust. Regarding a non-derogating order we use the words "reasonable suspicion" because it will involve analysing a large amount of material and reaching a conclusion that there is a sufficient degree of suspicion to justify the making of a non-derogating control order.
	As I said earlier, Lord Justice Laws in one case considered whether or not that was an appropriate level of proof. He said, not just that it would be, he also said that "a requirement of proof" of the type being argued for, which was, I think, the balance of probabilities, would,
	"frustrate the policy and the objects of the Act . . . the target of the Act's policy includes those who belong to loos, amorphous, unorganised groups".
	In effect, he said that there needs to be a sufficient degree of suspicion. If you set a burden of proof in a conventional way, you will end up not being able to target the people at whom the policy is aimed.
	Having said that, we accept the "balance of probability" standard of proof for the derogating order, because deprivation of liberty involves such an intrusion on people's rights, despite the difficulty that it imposes. The noble Lord, Lord Carlisle of Bucklow, suggested "beyond a reasonable doubt". We think that is wholly inappropriate. Unlike criminal proceedings, the orders are being made to prevent something happening in the future. We are trying to stop terrorist activity later. That is why the concepts of criminal burden of proof are not appropriate.

Lady Saltoun of Abernethy: Amendment No. 17 stands in my name, but I shall not press it—at least certainly not today. However, I am not happy. It would be far more honest to put a suspect in, whatever the Law Lords may say, so that everyone knows where they are. That would be far more honest.

Lord Thomas of Gresford: Time stands still in this place. I meant to say, on Monday.
	In Amendment No. 79—which I think was referred to this morning—the noble Baroness, Lady Scotland, is proposing that the obligations may be imposed by a control order whether or not the,
	"activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate".
	So he does not know the allegations, he does not know the evidence, he does not know the reasons, and the obligations may have nothing to do with what is suggested against him. So he cannot even infer why these obligations are imposed upon him.
	I think that we will return to the question of the standard of proof that has been exercising the noble Lords, Lord Carlisle of Bucklow, Lord Plant and Lord Judd. We will no doubt come back to that word "practicality". The standard of proof proposed in these proceedings, particularly for non-derogating orders, cannot possibly satisfy Article 6 when the determination of the civil obligations—never mind the criminal aspects of it—is in question.
	Other matters of evidence have been discussed in the course of this debate. My noble friend Lord Goodhart drew attention to Clause 1(3)(n) and (o) about interrogation. A person can be interrogated by anybody and forced to answer questions. That raises questions of privilege—which the noble Duke, the Duke of Montrose, referred to—self-incrimination and admissibility.
	At the back of this Bill, we see in the schedule that the Lord Chancellor is to have power to determine the nature of the evidence that can be produced in control order proceedings. Normally, where evidence is produced from a suspect by reason of a threat—which in this case would be up to five years' imprisonment if he did not answer the question—it would not be admissible in a criminal court. That has been determined quite recently in Strasbourg in relation to evidence produced in board of trade inquiries.
	What about the rules that the Lord Chancellor is going to propose here? Will the necessity, the state of security and so on, demand that evidence obtained forcibly under interrogation and with the threat of five years' imprisonment be admissible before any court considering the orders?
	The noble Lord, Lord Kingsland, has referred to matters which should appear on the face of the Bill, such as the requirement that the Director of Public Prosecutions should be consulted and give his view on whether a prosecution is possible before any order is made. What is wrong with that? We are told that this control order is at the end of the line. Why should the person who makes the order, whether he is the Secretary of State or a judge in court, not be assured by an independent person that the evidence is insufficient for prosecution? What can happen—this is really what I am afraid of—is a lazy imposition of a control order without proper investigation which would produce the necessary evidence: "Surveillance is too expensive in this case"; "Slap on a control order"; "We do not require a high standard of proof"; or, "We are not required to tell him whether we have any proof".
	The noble Lord, Lord Kingsland, also referred to the offence of committing an act which might lead to terrorist activity, or which is connected with terrorist activity. I imagine it might take about an hour to draft something that would be suitable and would pass muster, as opposed to this Bill. This Bill, with all the wording and verbiage in it, was put together in a matter of a day or two. But, no, the noble Baroness, Lady Scotland, said that the Government cannot do that because it has to be "carefully prepared, carefully scrutinised and debated at length"—one offence.
	Here we are having thrust down our throats all these provisions—the breach of 800 years of legal history and so on. I will not get rhetorical about it—or emotional about it, if it comes to that. But when they say, "Well, we cannot put an offence on the face of the Bill because it has got to be carefully prepared", it makes me smile.
	My amendment is simply specified in subsection (3). All we were trying to do was to confine the making of an order to the grounds that are set out; grounds that we have discussed and debated.
	The noble Lady, Lady Saltoun, pointed out how draconian and limiting, for example, paragraphs (c) to (g) were. But the Government will not have it. So, what is there on the face of the Bill? There is an absolute and unfettered power for the Secretary of State to impose any obligation whatever upon any person without limit of time. All he has to do is after that to go for judicial review to see whether he has followed the procedures properly. The Bill really is a disgrace. We will come back to the matter, but for the moment I beg leave to withdraw my amendment.

Lord Phillips of Sudbury: I strongly support Amendment No. 39, which was so insidiously moved by the noble Lord, Lord Kingsland, and Amendments Nos. 41 and 40. Clause 1(8) is crucial. The definition of terrorism- related activity runs throughout the Bill and ensuring that it is appropriate is of the first magnitude.
	Vis-à-vis Amendments Nos. 39 and 41, I would prefer the wording in paragraphs (a), (b) and (d) to be left intact, but with the word "or" replaced by "and", because we should require that the conduct is not only intentional as regards facilitating the commission of terrorism but facilitates it in fact. Both elements are needed. As matter of fact, the conduct should facilitate, encourage or support terrorism and intend so to do.
	I return to the example that I gave at Second Reading of another government and another Home Secretary, because it is never safe when discussing measures such as this to work on the assumption of the current people remaining in power. A thoroughly vindictive government and a thoroughly panicky Home Secretary could use the power, without amendments such as this, to bridle a journalist, be it a television or print journalist, who was running a series of passionate articles attacking the policy of the government of the day. It might be the invasion of Iraq, for example. That journalist's work would be brought within the definition of terrorism-related activity unless amendments such as this were allowed.
	I am bound to say that although the noble and learned Lord, the Lord Chancellor, earlier assured us that the protections for somebody caught up in the non-derogation orders were sufficient in terms of judicial review—the necessity of proving proportionality, for example—as an old solicitor who has seen this protection work or not work, I am not as sanguine as he is about the availability of that defence in the reality that will be created by the Bill.
	As I started by saying, the amendments are of the very first importance, and I hope that the Government will agree with them.

Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Thomas of Gresford, for breaking the fixture on that provision.
	Amendments No. 39, which we swept past but have swept straight back to, and Amendments Nos. 40 and 41 would amend the definition of "terrorism-related activity" by importing the need for intent into Clause 1(8)(a) to (c). As noble Lords have rightly pointed out, paragraphs (a) to (c) also catch conduct that facilitates, gives encouragement, gives support and so on to acts of terrorism or terrorism-related activities, whether or not so intended. The premise on which the amendments are based is correct.
	We should, however, remember that the Bill is intended to provide the power to prevent terrorist acts in the future. It is extraordinarily unlikely that the Bill is intended to or would catch people who were not in fact terrorists, but were inadvertently caught up in terrorism in some way.
	However, material has to be put before the court which indicates that the individual,
	"is or has been involved in terrorism-related activity",
	and that the order is necessary to protect the public from a terrorist-related activity. I submit that those two tests, taken together, provide adequate protection. If an additional element has to be proved—namely, intent or knowledge—that would add an element that would be inappropriate, particularly having regard to the sort of material that would be relied on.
	I shall deal specifically and head on with the example cited by the noble Lord, Lord Phillips of Sudbury. I think he put it this way: could a journalist at some future date writing aggressively anti-government articles be said to be doing something,
	"which facilitates the commission, preparation or instigation",
	of terrorist acts by inflaming people against the government? We most certainly say that it would not. Equally, we emphasise that it would not be something that would justify the making of an order, because it would not be necessary in order to protect the public from terrorism. It could not possibly be done as a legitimate aim under the Convention and it could not possibly be proportionate.
	I have identified three separate legal hurdles that would have to be overcome before such a proposition could come to pass. So while I fully understand the noble Lord's concern, and he is right to be as anxious as possible to determine the extent of the provision, I respectfully suggest that there are enough safeguards in the Bill to make sure that that sort of thing would never happen.